Wednesday, 13 January 2010

See also: the follow-up on Article 291 TFEU here and the criticism of the European Parliament here. See also this scientific analysis of the old Comitology.There are topics I have problems covering, because they are so geekish that they are not meant to be talked about by ordinary people - like the implementation of Article 290 of the Treaty on the Functioning of the European Union (TFEU).

But let's try it.

Put in very simple terms, Article 290 TFEU allows the EU legislator, the European Parliament and the Council of the European Union, to give powers to the European Commission to amend or supplement legislative acts in which these powers are clearly defined:

"Article 290

1. A legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act.

The objectives, content, scope and duration of the delegation of power shall be explicitly defined in the legislative acts. The essential elements of an area shall be reserved for the legislative act and accordingly shall not be the subject of a delegation of power.

2. Legislative acts shall explicitly lay down the conditions to which the delegation is subject; these conditions may be as follows:

(a) the European Parliament or the Council may decide to revoke the delegation;

(b) the delegated act may enter into force only if no objection has been expressed by the European Parliament or the Council within a period set by the legislative act.

The European Commission is now entering into discussions with the Parliament and the Council on how to interpret these provisions, as demanded by the Council Presidency in October (see here).

Important to note is what the Commission writes in its communication about the importance of this Article 290 (and the following article 291):

"For it is around Articles 290 and 291 that the legal framework will have to be constructed to replace the comitology system established under the Treaty establishing the European Community." (page 3, own highlight)

The procedure following the implementation of Article 290 therefore seems to lead to a new comitology, a Comitology 2.0, and it will be interesting to see how important these changes will be.

So far, it looks as if the old system could largely remain in place if it fits the demands of the Lisbon Treaty changes:

"Except in cases where this preparatory work does not require any new expertise, the Commission intends systematically to consult experts from the national authorities of all the Member States, which will be responsible for implementing the delegated acts once they have been adopted.

This consultation will be carried out in plenty of time, to give the experts an opportunity to make a useful and effective contribution to the Commission.

The Commission might form new expert groups for this purpose, or use existing ones." (page 6-7; own highlight)

Further on, the Commission is already trying to secure its own powers as soon as it got a right under Article 290. The communication imposes on the legislator that a "right to revocation" does only come with "a duty to explain the reasons" and the "right to opposition" to measures taken by the Commission is only "suspensive" in nature (pages 8-9).

This kind of interpretation might seem logic in the first place, but since this is not defined in the Treaties, I wonder whether Parliament and Council want to be dictated by the Commission how their right to legislate (i.e. to delegate legislative rights or to take back this delegation) is to be limited in such a restrictive way.

Finally, the Annex of the Communication lays out a number of possible formulations that could be used when the European legislator wants to use Article 290 in a legislative act.

Altogether, this is very technical and thus doesn't look so controversial, but I assume that for all these techocrats in the EU system this will be a beautiful playing ground with expert discussions that will never see the sunlight.